No winners yet in education case

When the N.C. Supreme Court dismissed a legal challenge to the state's preschool program earlier this month, Senate leader Phil Berger declared victory. He was wrong. There was no winner.

"Today's Supreme Court decision is a clear affirmation of the General Assembly's central role in shaping education policy -- and the size and scope of North Carolina's pre-K program," Berger said in a press release. "The court's ruling ensures the pre-K program will move forward as the legislature intended -- with eight out of 10 pre-K slots serving children who are financially 'at risk.' "

The statement is misleading. The court simply dismissed the case as moot because the legislature had already amended provisions that prompted the challenge in the first place. It did not relinquish the courts' role in making sure that North Carolina children have an opportunity to receive a sound, basic education.

"We express no opinion on the legislation now in effect because questions of its constitutionality are not before us," the court said. "Our mandates in Leandro and Hoke County remain in full force and effect."

The Leandro and Hoke County decisions set the "sound, basic education" standard. In the second landmark ruling, issued in 2004, the court said children should enter kindergarten prepared to learn. The state responded by creating prekindergarten programs for 4-year-olds who were deemed to be at high risk for failure. But it never provided enough resources to serve all eligible children.

When the legislature cut back even further in 2011, several local school systems went to court. Superior Court Judge Howard Manning found that the state had violated the Supreme Court's mandate. He was supported by the N.C. Court of Appeals.

In 2012, the legislature repealed its 2011 action and created more spaces for at-risk children, which meant the substance of the complaint had changed. So the Supreme Court declined to review a provision that was eliminated. The court did not endorse the state's pre-K program as it exists today. It did not consider that question.

Would it approve? It's hard to see how, given its Leandro and Hoke County rulings.

The advocacy group Action for Children North Carolina says half of children live in low-income households, but only 19 percent of 4-year-olds are enrolled in state pre-K programs. The liberal-leaning N.C. Policy Watch says the current budget provides slots for 27,500 students, compared to 35,000 five years ago -- while an estimated 67,000 4-year-olds qualify.

Berger is right that the legislature has a central role in shaping education policy, but it also must comply with what the Supreme Court says are constitutional imperatives. The court has never said the legislature must operate pre-K programs. But, because the legislature has chosen pre-K programs as the means to prepare at-risk 4-year-olds for success in school, it must provide the same opportunities for all eligible children. It has not.

Until it does, there will be more legal challenges -- and, as long as any children enter kindergarten prepared only to fail, there will be no winners.